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Tuesday, December 11, 2012

Judge Posner, writing for the majority in Moore v. Madison on the Second Amendment

In a split opinion, released today from the 7th Circuit Court of Appeals,
the court reversed a lower court ruling in two cases downstate that upheld the
state's longstanding prohibition against carrying concealed weapons.

"We are disinclined to engage in another round of historical analysis
to determine whether eighteenth-century America understood the Second
Amendment to include a right to bear guns outside the home," Judge
Richard Posner wrote in the court's majority opinion. . . .

The Second Amendment states in its entirety that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The right to “bear” as distinct from the right to “keep” arms is unlikely to refer to the home. To speak of “bearing” arms within one’s home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home. . . .

"The Supreme Court has decided that the amendment confers a right to
bear arms for self-defense, which is as important outside the home as
inside. The theoretical and empirical evidence (which overall is
inconclusive) is consistent with concluding that a right to carry
firearms in public may promote self-defense," he continued.